Tom and I have tangled on intellectual property rights before. Some of our differences are semantic, others substantive. But before tackling the differences, it’s worth noting that Tom and I agree (I think) on certain conclusions: (1) that IP differs from traditional property in some important ways, (2) that we ought to be more skeptical of IP than traditional property, and (3) that the rent-seeking activities of interested parties (e.g, Disney, RIAA) have strongly affected the development of IP law in undesirable ways.
Now to the differences. In this post, I’ll focus on the major semantic difference, which is the use of the term “natural rights.” Natural rights is not a term I use often, so in some sense I’m indifferent to its use. But I think Tom has adopted a definition at odds with that employed by most practitioners of natural rights theory (or the closely related natural law theory). In our earlier blog discussion, Tom concluded, "Only a right that an individual can in general effectively assert in a state of nature can qualify as a natural right." In his debate with Adam Mossoff, he treats natural rights as synonymous with customary or common law rights. Either of these would be a novel definition, as most natural-law/natural-rights folks say that natural rights derive from our nature as human beings and the application of right reason. More here.
If we nevertheless accept Tom’s notion of natural rights as those that would arise through some kind of decentralized stateless legal process, then I’m willing to concede that IP is most likely not a natural right. Historically, it did not arise from common law, and while we cannot know for sure what would have happened in the absence of IP statutes, I’m willing to stipulate that IP (at least in the form of copyright and patent) probably would not have evolved.
But this approach just collapses the question of whether IP is a natural right into a question about the optimality of evolved versus statutory law. I don’t think that debate has arrived at a clear answer. The models alleging to show that common law evolves toward efficient rules are riddled with holes (a point I’m willing to expand upon). Even if those models are taken as given, they still only show a weak tendency toward efficiency. Even with norms other than efficiency, I don’t know of any model or argument that demonstrates the superiority of evolved law over statutory law for every type of case or area of law. The strongest case one can make for evolved law over statutory law is that it has fewer problems than statutory law, especially once the influence of rent-seeking is taken into account. I find this argument fairly persuasive, but its conclusion is not that evolved law will outperform statutory law in every respect and for every kind of issue, but simply that it performs better on net. This leaves plenty of room for suboptimal outcomes in evolved law’s treatment of specific issues like intellectual property.
To put it another way: Suppose we define natural rights as those which would emerge from a decentralized legal process. Fine, I say, then IP is not a natural right. But so what? We have no basis for concluding that the treatment (or absence of treatment) of IP in a decentralized legal system would be desirable, even if we think such a system would be desirable all things considered.